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Judge Willie Seriti and Judge Hendrick Musi

Judge Willie Seriti and Judge Hendrick Musi

Judge Willie Seriti and Judge Hendrick Musi

Image courtesy of Daily Maverick / The Times / Daniel Born

Former Supreme Court of Appeal Judge Willie Seriti and former Judge President Hendrik Musi are two retired judges are facing a judicial misconduct investigation over their role in a commission of inquiry into a corrupt arms deal.

They are accused of not doing a proper investigation, or at least following judicial ethical standards during the course of the investigation.

Their case brings up questions about judicial ethical standards for judges involved in commissions of inquiry, and whether they may be held accountable for missteps committed during the course of a commission investigation.

 

THE STORY BEHIND THE SERITI / MUSI CONDUCT COMPLAINT:

 

The establishment of the Arms Deal Commission of Inquiry

In 2011, Terry Crawford-Brown, an anti-arms deal and corruption activist, petitioned the Constitutional Court to compel former president Jacob Zuma to establish a commission of inquiry into allegations of criminal misconduct and corruption surrounding the 1999 Arms Deal worth R30 billion (which ultimately escalated to R142 billion).

In response, Zuma established the Arms Deal Commission of Inquiry to investigate whether the military equipment purchased in the deal was properly procured, whether there was any fraud or corruption, and whether the job opportunities associated with the arms deal had materialised or not.

Judge Willie Seriti, then a justice of the Supreme Court, was appointed by President Jacob Zuma to lead the probe (hence it was sometimes called the ‘Seriti Commission’). Later, Judge Hendrick Musi, the then Judge President of the Free State High Court, was appointed to assist Seriti.

 

The Arms Deal Commission investigation

During the course of its investigations, several NGOs called for the Seriti Commission to be disbanded due to its failure to call crucial witnesses while disregarding the evidence of other key witnesses. But the Commission persisted.

After an investigation lasting 4 years, the Arms Deal Commission submitted its final report to the president in December 2015.  The report found that that the Arms Deal the jobs envisaged to be created had been created, but that there was no evidence of improper procurement, fraud or corruption. In short, according to the Commission, no one had done anything untoward, and nobody should be prosecuted.

 

High Court review of Arms Deal Commission report

In 2016, two NGOs, Corruption Watch and Right2Know, filed an application in the North Gauteng High Court to set the Seriti Commission’s findings aside on the grounds that no proper investigation was conducted.

While the Presidency previously opposed the NGOs’ court application, in 2019 that opposition was withdrawn. Judge Seriti and Musi had not opposed the court action.

With no opposition, a full bench of 3 judges of the North Gauteng High Court set aside the Seriti Commission’s report, saying that the commission:
– manifestly failed to enquire into key issues,
– refused to accept critical reports based on a misunderstanding on the law,
– accepted facts that a reasonable commission would have probed further,
– failed to examine the record of a related and relevant corruption trial,
– misunderstood the flexible rules of a commission of inquiry and applied the strict rules of a court of law.
See the full judgment: Corruption Watch v Arms Procurement Commission 2020 (2) SA 165 (GP)

The Government decided not to appeal the judgment. However, in 2022, after a judicial misconduct was filed against them ( more on that below) Judges Seriti and Musi attempted to appeal the judgment on the basis that they believed that the Government would oppose the NGOs case on their behalf. The Full Bench of the North Gauteng dismissed the appeal on the grounds the judges had delayed in filing their appeal plus there were no prospects that the appeal would succeed.

 

HOLDING THE COMMISSION JUDGES ACCOUNTABLE


NGOs submit complaints against two judges

On 11 August 2020, non-profit organisations Shadow World Investigations and Open Secrets submitted a complaint to the JSC, asking for the two judges to be held accountable for “their failure to adequately investigate the arms deal“. The complainants suggested that the judges’ actions could potentially constitute gross judicial misconduct, arguing that the Commission’s final report “materially misled the public” and contributed to covering up alleged corruption related to the arms deal.

– See also: Open Secrets complaint: [https://www.opensecrets.org.za/jsc-complaint/
– News; 20.8.2020 | Why we have complained to the Chief Justice about Judges Willie Seriti and Hendrick Musi’

 

Update: [May 2021] Chief Justice refers complaint to Judicial Conduct Committee

In May 2021, Deputy Chief Justice Raymond Zondo wrote a letter to the complainants classifying the complaint as ‘serious’ and confirmed that the complaints had been referred to the Judicial Conduct Committee for further investigation.

– See also: https://www.opensecrets.org.za/referral-of-shadow-world-investigations-and-open-secrets-complaint-to-the-judicial-conduct-committee/
– News:11 May 2021 | ‘JSC committee to investigate complaint against arms deal judges.’
– News:11 May 2021 | ‘Arms Deal Inquiry judges to face misconduct investigation – JSC.’

 

Update: [June 2021]: The two judges file a high court application

In June 2021, on the eve of the hearing by the Judicial Conduct Committee, the two judges filed an application to challenge the constitutionality of the Judicial Service Commission (JSC) Act. They did so on the grounds that it impermissibly expanded the definition of a ‘judge’ in terms of the Constitution.  They also questioned the JSC’s authority to investigate judges who were no longer in active service, arguing that “retired judges” should not be included in the definition of a judge under the JSC Act, and thus not subject to the complaints procedure including the Judicial Code of Conduct.

– See: www.opensecrets.org.za/Seriti-J-and-Another-v-JSC-and-Others-Founding-papers.pdf
– News:2 July 2021 | ‘JSC Act is unconstitutional, say arms deal commission judges’ 

 

Update: 14 March 2023: Judges court application is heard.

Judges Seriti and Musi’s application was heard in the South Gauteng High Court on 14 March 2023 before a full bench including Deputy Judge President Roland Sutherland and Judges Lotter Wepener and Edwin Molahlehi.

– News: 14 March 2023 | ‘Retired judges who headed arms deal commission challenge judicial service act’

 

Update: 14 April 2023: Court application is dismissed

In a judgment by Deputy Judge President Roland Sutherland, the South Gauteng High Court dismissed Seriti and Musi’s application, and found that the JSC Act’s definition of a ‘judge’ is in line with the Constitution, and did not impermissibly expand on that defection. Furthermore, the definition of a ‘judge’ includes those judges  who are no longer in active service (so-called ‘retired’ judges). That’s because a judge is appointed for life and they may only leave the judiciary through resignation (as opposed to retirement).

“The choice of making a person a judge for life is bound up with the expectations of the character of judgeship and especially the independence that a judge is required to assert in the South African context. “

– See the full judgment: Seriti and Another v Judicial Service Commission and Others (32193/2023) [2023] ZAGPJHC 332 (14 April 2023)

The judgment clears the way for a JSC investigation into the allegations of gross misconduct against the two retired judges. Both judges are now facing an investigation for “incapacity, gross incompetence or gross misconduct”.

– News: 14 April 2023 | ‘Seriti and Musi’s challenge to JSC act dismissed’

 

Update: 26 July 2023 | JCC holds preliminary hearing into complaint

Following the April 2023 judgment, the Judicial Conduct Committee held a preliminary hearing to determine the further progress of the complaint against Judges and Musi. Importantly, this is the first hearing where the JCC receives a formal response from both judges.

The hearing was chaired by Deputy Chief Justice Maya joined by Justice Zondi and Mabindla-Boqwana. The two judges sent their legal representatives while the two complainants, Open Secrets and Shadow World Investigations, also sent theirs.

The JCC will soon issue a decision which will determine the further progress of the complaint.

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